In Sharma v. Timminco Limited, the Ontario Court of Appeal held that for an Ontario Class Proceedings Act ("CPA") section 183.3 cause of action to be asserted and be able to trigger the suspension provision of section 28 of the CPA, leave must be granted.
This case stems from a securities class action raising allegations of negligence and negligent misrepresentation that affected the values of the shares of Timminco, between March 17, 2008 and November 11, 2008. The class representative indicated that he would seek leave to assert that there was a statutory cause of action for misrepresentation under section 138.3 of Part XXIII.1 of the Securities Act. The statute of limitations in this part of the act is three years from the alleged misrepresentation. In February 2011 the plaintiff, who had not yet obtained leave sought an order declaring the limitation period of three years to be suspended by use of section 28 of the Class Proceedings Act.
The issue before the Ontario Court of Appeal was whether mentioning an intention to seek leave, as per section 138.3 of the Ontario Securities Act, is sufficient to suspend the limitation period by using section 28 of the CPA. The court looked to the ordinary meaning and use of the words used in section 28 of the CPA and found that the words “assert” mean more than simply mentioning, and as such the court finds that the section 138.3 cause of action is not asserted in the class proceeding because no leave has been granted by the court. The court found that for a section 138.3 cause of action to be asserted in a class proceeding resulting in the ability to trigger the suspension provision of section 28 of the CPA, leave of the court must be granted and since no such leave was granted, section 28 cannot be utilized.
The appeal was allowed and the respondent’s motion for an order declaring the limitation period set out in section 138.13 of the Securities Act not applicable is dismissed.
February 16, 2012
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Sierra Robart
*
Thursday, February 16, 2012
Monday, February 13, 2012
Teal Cedar Products Ltd. v. British Columbia (Ministry of Forests), 2012 BCCA 70
In Teal Cedar Products Ltd v. British Columbia (Ministry of Forests), the British Columbia Court of Appeal clarified the circumstances surrounding compensation provided under s. 7 of the Protected Areas Forest Compensation Act ("Compensation Act") and s. 60 of the Forest Act. Justice Saunders held for the court that compensation can only be calculated starting from the date of the reduction in the allowable annual cut.
In April 1993, Teal Cedar Products Ltd purchased a forest license under the Forest Act to harvest a stipulated volume of wood annually from an area called Chart Area 112. Shortly before the purchase, the Ministry of Forests had suspended logging in part of the area while considering the possibility of a provincial park, which materialized in July 1995. Although the park's creation prohibited further logging in that part of Chart Area 112, Teal's allowable annual cut was not impacted until it was reduced on April 1, 1999. British Columbia appealed from an order to compensate Teal for its loses from July 1995 to April 1, 1999.
Saunders J. held that although the government's actions were a "taking," the relevant compensation scheme was dictated by s. 7 of the Compensation Act and s. 60 of the Forest Act, rather than the provincial Expropriation Act. Justice Saunders disagreed with both the arbitrator and trial judge's interpretations and found that the two provisions provided a complete code of compensation. She distinguished this case from Toronto Area Transit Operating Authority v. Dell Holdings, which provided compensation for losses from a preceding period where they were caused by a scheme associated with the "taking", holding that the language of s. 60(4) of the Forest Actonly provides compensation from the date of the reduction in the allowable cut. Saunders J. held that compensation commences from April 1, 1999 when the allowable annual cut was reduced, and allowed British Columbia's appeal.
February 13, 2012
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Adrienne Ho
*
In April 1993, Teal Cedar Products Ltd purchased a forest license under the Forest Act to harvest a stipulated volume of wood annually from an area called Chart Area 112. Shortly before the purchase, the Ministry of Forests had suspended logging in part of the area while considering the possibility of a provincial park, which materialized in July 1995. Although the park's creation prohibited further logging in that part of Chart Area 112, Teal's allowable annual cut was not impacted until it was reduced on April 1, 1999. British Columbia appealed from an order to compensate Teal for its loses from July 1995 to April 1, 1999.
Saunders J. held that although the government's actions were a "taking," the relevant compensation scheme was dictated by s. 7 of the Compensation Act and s. 60 of the Forest Act, rather than the provincial Expropriation Act. Justice Saunders disagreed with both the arbitrator and trial judge's interpretations and found that the two provisions provided a complete code of compensation. She distinguished this case from Toronto Area Transit Operating Authority v. Dell Holdings, which provided compensation for losses from a preceding period where they were caused by a scheme associated with the "taking", holding that the language of s. 60(4) of the Forest Actonly provides compensation from the date of the reduction in the allowable cut. Saunders J. held that compensation commences from April 1, 1999 when the allowable annual cut was reduced, and allowed British Columbia's appeal.
February 13, 2012
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Adrienne Ho
*
Friday, December 30, 2011
Bartram v. Glaxosmithkline Inc., 2011 BCCA 539
In Bartram v. Glaxosmithkline Inc., the Court of Appeal for British Columbia ruled that the plaintiffs in a potential class action suit against pharmaceutical giant Glaxosmithkline Inc did not have to produce medical and pharmaceutical records at the pre-certification stage.
The child of the plaintiff Mrs. Bartram was born with birth defects. She applied for certification of a class action suit to represent mothers who took the drug Paxil during pregnancy and their children. The heart of the claim was an alleged failure on the part of Glaxosmithkline Inc., manufacturer and marketer of the drug, to warn against the risk of birth defects resulting from pregnant women taking the drug. A chambers judge had dismissed Glaxosmithkline Inc.’s application for production of the medical and pharmaceutical records prior to the certification decision being made, leading the company to file for leave to appeal the decision.
Prowse J. upheld the chambers judge’s finding that there were no exceptional circumstances that would justify ordering production of medical evidence at such an early stage in the class proceedings. Ruling otherwise would, in her words, “transform what is a recognized exception to the practice into the norm.” Such a development would have allowed potential defendants in personal injury class action suits – a rapidly expanding area of Canadian jurisprudence – to try sway the courts against certifying by commanding evidence related to the strength of the plaintiff’s substantive claim rather than the rationale for certification.
December 30, 2011
Link to Decision
Radostina Pavlova
*
The child of the plaintiff Mrs. Bartram was born with birth defects. She applied for certification of a class action suit to represent mothers who took the drug Paxil during pregnancy and their children. The heart of the claim was an alleged failure on the part of Glaxosmithkline Inc., manufacturer and marketer of the drug, to warn against the risk of birth defects resulting from pregnant women taking the drug. A chambers judge had dismissed Glaxosmithkline Inc.’s application for production of the medical and pharmaceutical records prior to the certification decision being made, leading the company to file for leave to appeal the decision.
Prowse J. upheld the chambers judge’s finding that there were no exceptional circumstances that would justify ordering production of medical evidence at such an early stage in the class proceedings. Ruling otherwise would, in her words, “transform what is a recognized exception to the practice into the norm.” Such a development would have allowed potential defendants in personal injury class action suits – a rapidly expanding area of Canadian jurisprudence – to try sway the courts against certifying by commanding evidence related to the strength of the plaintiff’s substantive claim rather than the rationale for certification.
December 30, 2011
Link to Decision
Radostina Pavlova
*
Thursday, December 22, 2011
R. v. D.J.W., 2011 BCCA 522
In this case, the British Columbia Court of Appeal held that the religious freedom protections in the Charter of Rights and Freedoms do not protect a parent from criminal prosecution, in a case in which a father circumcised his son himself for religious reasons, and in defiance of doctors' advice, harming the child.
The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.
The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.
December 22, 2011
Link to Decision
Meagan Jemmett
*
The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.
The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.
December 22, 2011
Link to Decision
Meagan Jemmett
*
Wednesday, December 14, 2011
Ewachniuk Estate v. Ewachniuk, 2011 BCCA 510
In this case, the B.C. Court of Appeal considered the appropriate limitation period under the Limitation Act, RSBC 1996, c 266, for bringing an action to enforce payment on a “delayed demand” promissory note. The promissory note stated that a specified sum was “payable one year after demand” and the note had been created 28 years prior to the issuance of a demand for payment. The defendant had failed to make payment within a year of the demand and contended that the note was unenforceable under section 3(5) of the Limitation Act, which provided that an action could not be brought following “6 years after the date on which the right to do so arose.”
After an extensive inquiry into the soundness of authorities relating to limitation periods for delayed-demand notes, Chief Justice Finch upheld the trial judge’s decision that enforcement of such a promissory note was not barred by the Limitation Act, holding that the date on which the right of action arose was one year after the demand for payment. Finch, J. upheld Zeitler v. The Estate of Alfons Zeitler, 2008 BCSC 775, which held that: 1) the demand in a delayed- demand promissory note may properly be characterized as a contingent future event and the end of the designated period following the demand marks the moment when the cause of action arises; and 2) there is no merit to the argument that the “demand” in a delayed-demand note may never be made and is not due at a “determinable future time” (as required by the Bills of Exchange Act, RSC 1985, c B-4, s 23(b)). Accordingly, the limitation period did not begin to run until the expiry of the one-year period following demand.
Justice Ryan concurred in the result but stated that she would not have overruled earlier authorities regardless of whether these were wrongly decided, asserting that the maxim communis error facit jus (“common error makes law”) applied since this construction of the limitation period for delayed-demand notes had long been accepted in commercial practice.
December 14, 2011
Link to Decision
Grant Bishop
*
After an extensive inquiry into the soundness of authorities relating to limitation periods for delayed-demand notes, Chief Justice Finch upheld the trial judge’s decision that enforcement of such a promissory note was not barred by the Limitation Act, holding that the date on which the right of action arose was one year after the demand for payment. Finch, J. upheld Zeitler v. The Estate of Alfons Zeitler, 2008 BCSC 775, which held that: 1) the demand in a delayed- demand promissory note may properly be characterized as a contingent future event and the end of the designated period following the demand marks the moment when the cause of action arises; and 2) there is no merit to the argument that the “demand” in a delayed-demand note may never be made and is not due at a “determinable future time” (as required by the Bills of Exchange Act, RSC 1985, c B-4, s 23(b)). Accordingly, the limitation period did not begin to run until the expiry of the one-year period following demand.
Justice Ryan concurred in the result but stated that she would not have overruled earlier authorities regardless of whether these were wrongly decided, asserting that the maxim communis error facit jus (“common error makes law”) applied since this construction of the limitation period for delayed-demand notes had long been accepted in commercial practice.
December 14, 2011
Link to Decision
Grant Bishop
*
Tuesday, December 13, 2011
Almrei v. Canada (Attorney General), 2011 ONCA 779
In Almrei v. Canada, the Court of Appeal of Ontario identified circumstances in which the decision to dismiss a motion brought under Rule 20 for summary judgment will constitute a final order of the court, and, as a result, the motion judge’s decision may be appealed. The Court established that in the case where the resolution of a particular issue in summary judgment gives rise to res judicata, the order to dismiss the motion for summary judgment is final and may be appealed.
The appellant was suing the state for damages alleging, among other things, negligent investigation, false imprisonment, and breaches of ss. 7, 9, and 12 of the Canadian Charter of Rights and Freedoms. These actions arose out of the Attorney General issuing a security certificate in 2008 under the Immigration and Refugee Protection Act and holding the appellant in custody for many years. The trial judge determined that the security certificate was unreasonable and quashed it. The appellant sought partial summary judgment in his action against the Attorney General on the basis of issue estoppel, arguing that the parties were bound by the decision made by the trial judge. The Attorney General moved to quash the appeal on the claims that the order to dismiss the appellant’s motion for summary judgment was not final.
Although an order dismissing a motion for summary judgment brought under Rule 20 is not necessarily a final order in that it determines only that there are genuine issues for trial, if the order is res judicata, then the order may be final. In this case, the appellant singled out for resolution the issue of issue estoppel, which was found by the motion judge to not be available. The issue of issue estoppel is res judicata, and, therefore, the appellant cannot raise it and the order dismissing the motion for summary judgment is a final order of the court. As a result, the appellant may appeal the motion judge’s decision to dismiss his motion for summary judgment.
December 13, 2011
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Pedram Moussavi
*
The appellant was suing the state for damages alleging, among other things, negligent investigation, false imprisonment, and breaches of ss. 7, 9, and 12 of the Canadian Charter of Rights and Freedoms. These actions arose out of the Attorney General issuing a security certificate in 2008 under the Immigration and Refugee Protection Act and holding the appellant in custody for many years. The trial judge determined that the security certificate was unreasonable and quashed it. The appellant sought partial summary judgment in his action against the Attorney General on the basis of issue estoppel, arguing that the parties were bound by the decision made by the trial judge. The Attorney General moved to quash the appeal on the claims that the order to dismiss the appellant’s motion for summary judgment was not final.
Although an order dismissing a motion for summary judgment brought under Rule 20 is not necessarily a final order in that it determines only that there are genuine issues for trial, if the order is res judicata, then the order may be final. In this case, the appellant singled out for resolution the issue of issue estoppel, which was found by the motion judge to not be available. The issue of issue estoppel is res judicata, and, therefore, the appellant cannot raise it and the order dismissing the motion for summary judgment is a final order of the court. As a result, the appellant may appeal the motion judge’s decision to dismiss his motion for summary judgment.
December 13, 2011
Link to Decision
Pedram Moussavi
*
Wednesday, December 7, 2011
Islam v. Sevgur, 2011 NSCA 114
In Islam v. Sevgur, the Nova Scotia Court of Appeal provided a non-exhaustive list of relevant factors for deciding if a Registrar's motion to dismiss an appeal should be granted. Saunders, J.A. held that the onus was on the appellant to introduce evidence that it would not be in the interests of justice to dismiss the appeal.
The issue arose when the appellant's interlocutory appeals during his divorce proceedings failed to meet procedural requirements, prompting the Registrar to move for their dismissal. Civil Procedure Rule 90.43 provides the judge with discretion to decide whether the Registrar's motion should be granted. In the absence of guidance in Rule 90.43, Justice Saunders introduced his own approach, stating that the appellant must satisfy the court, on a balance of probabilities, that the Registrar's motions should be denied. He held that the appellant had to convince the court that it would not be in the interests of justice to dismiss the appeal for non-compliance.
Saunders, J.A. stated eight factors for consideration but held that they were not a complete list:
(i) whether there is a good reason for the appellant's default,
sufficient to excuse the failure.
(ii) whether the grounds of appeal raise legitimate, arguable issues.
(iii) whether the appeal is taken in good faith and not to delay or
deny the respondent's success at trial.
(iv) whether the appellant has the willingness and ability to comply
with future deadlines and requirements under the Rules.
(v) prejudice to the appellant if the Registrar’s motion to dismiss
the appeal were granted.
(vi prejudice to the respondent if the Registrar’s motion to dismiss
were denied.
(vii) the Court's finite time and resources, coupled with the
deleterious impact of delay on the public purse, which require that
appeals be perfected and heard expeditiously.
(viii) whether there are any procedural or substantive impediments
that prevent the appellant from resuscitating his stalled appeal.
In reviewing the evidence, Saunders, J.A. concluded that the Registrar's motions should be granted as there would be neither prejudice to the appellant, nor was he persuaded by the appellant's reasons for non-compliance. Furthermore, Saunders, J.A. found that the denial of these appeals would prejudice the respondent. Hence, all of the appeals were dismissed.
December 7, 2011
Link to Decision
Adrienne Ho
*
The issue arose when the appellant's interlocutory appeals during his divorce proceedings failed to meet procedural requirements, prompting the Registrar to move for their dismissal. Civil Procedure Rule 90.43 provides the judge with discretion to decide whether the Registrar's motion should be granted. In the absence of guidance in Rule 90.43, Justice Saunders introduced his own approach, stating that the appellant must satisfy the court, on a balance of probabilities, that the Registrar's motions should be denied. He held that the appellant had to convince the court that it would not be in the interests of justice to dismiss the appeal for non-compliance.
Saunders, J.A. stated eight factors for consideration but held that they were not a complete list:
(i) whether there is a good reason for the appellant's default,
sufficient to excuse the failure.
(ii) whether the grounds of appeal raise legitimate, arguable issues.
(iii) whether the appeal is taken in good faith and not to delay or
deny the respondent's success at trial.
(iv) whether the appellant has the willingness and ability to comply
with future deadlines and requirements under the Rules.
(v) prejudice to the appellant if the Registrar’s motion to dismiss
the appeal were granted.
(vi prejudice to the respondent if the Registrar’s motion to dismiss
were denied.
(vii) the Court's finite time and resources, coupled with the
deleterious impact of delay on the public purse, which require that
appeals be perfected and heard expeditiously.
(viii) whether there are any procedural or substantive impediments
that prevent the appellant from resuscitating his stalled appeal.
In reviewing the evidence, Saunders, J.A. concluded that the Registrar's motions should be granted as there would be neither prejudice to the appellant, nor was he persuaded by the appellant's reasons for non-compliance. Furthermore, Saunders, J.A. found that the denial of these appeals would prejudice the respondent. Hence, all of the appeals were dismissed.
December 7, 2011
Link to Decision
Adrienne Ho
*
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